Com. v. Kent, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARILYN KENT :
:
Appellant : No. 3846 EDA 2016
Appeal from the Judgment of Sentence September 16, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-SA-0000247-2016
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 06, 2018
Marilyn Kent appeals from the judgment of sentence imposed
September 16, 2016, in the Bucks County Court of Common Pleas. The trial
court sentenced Kent to two consecutive terms of 90 days’ probation following
her summary conviction of two citations for cruelty to animals.1 On appeal,
she challenges the weight and sufficiency of the evidence supporting her
convictions. For the reasons below, we quash this appeal as untimely filed.
The facts and procedural history underlying this appeal are well-known
to the parties, and recounted in both the trial court’s opinion and an
unpublished decision of this Court in a prior appeal. See Trial Court Opinion,
8/4/2017, at 1-8; Commonwealth v. Kent, 144 A.3d 211 (Pa. Super. 2016)
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1 Kent was convicted under 18 Pa.C.S. § 5511(c)(1), the statute in effect from
August 13, 2012 until September 7, 2015. Effective August 28, 2017, that
statute was repealed and renumbered 18 Pa.C.S. §§ 5531-5561.
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(unpublished memorandum at 1-2). Therefore, we need not reiterate them
in detail herein. In summary, Kent was convicted in the Bucks County
Magisterial District Court of two citations for cruelty to animals. Her attempt
to appeal those summary convictions to the Bucks County Court of Common
Pleas was thwarted when the clerk of courts neglected to docket her notice of
appeal. See Kent, supra, 144 A.3d 211 (unpublished memorandum at 1).
After the trial court denied her request for nunc pro tunc relief, Kent sought
redress before a panel of this Court, which reversed the order of the trial court
and remanded for further proceedings. See id. (unpublished memorandum
at 3-4).
Upon remand, Kent perfected her appeal to the trial court, and a
summary trial de novo was conducted on September 16, 2016. At the
conclusion of the hearing, during which Kent was represented by counsel, the
court found Kent guilty of both charges.2 Kent was immediately sentenced to
a 90-day period of probation on each citation, for a total of 180 days.3 The
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2The court determined Kent both abused her dog and also failed to provide it
with appropriate veterinary care. See N.T., 9/16/2016, at 84.
3 The court also directed Kent to pay restitution in the amount of $1,856.00
to the Bucks County SPCA, as well as forfeit ownership of her dog to the SPCA.
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court specifically instructed Kent she had 10 days to file post-disposition
motions, and 30 days to file an appeal.4 See N.T., 9/16/2016, at 87.
On October 21, 2016, Kent filed an untimely, pro se notice of appeal,
and request to proceed in forma pauperis.5 On the notice of appeal, Kent
stated she was appealing “from the Order of September 23, 2016.” Notice of
Appeal, 10/21/2016. When an initial review revealed no order docketed on
that date, this Court, on December 27, 2012, issued Kent a Rule to Show
Cause, directing her to explain within 10 days, “why the appeal should not be
quashed as having been taken from a purported order which is not entered
upon the appropriate docket of the lower court.” Order, 12/27/2016. Kent
filed a pro se response on February 16, 2017, in which she stated she
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4 We note the trial court misinformed Kent regarding her right to file post-
disposition motions. Pennsylvania Rule of Criminal Procedure 720 states, in
relevant part:
(D) Summary Case Appeals. There shall be no post-sentence
motion in summary case appeals following a trial de novo in the
court of common pleas. The imposition of sentence immediately
following a determination of guilt at the conclusion of the trial de
novo shall constitute a final order for purposes of appeal.
Pa.R.Crim.P. 720(D). Nevertheless, as will be discussed infra, because Kent
did not attempt to file a post-disposition motion, we find the court’s erroneous
statement to be a non-issue.
5 Because the 30th day following imposition of her sentence - October 16, 2016
- fell on a Sunday, Kent had until Monday, October 17, 2016, to file a timely
appeal. See 1 Pa.C.S. § 1908. However, Kent did not file her appeal until
four days later.
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“assumed the problem was with the Docket#” and asserted her innocence of
the crimes charges. Response to Rule to Show Cause, 2/16/2017, at 2.
Subsequently, this Court became aware that Kent was still represented
by counsel, since her private trial attorney had not filed a petition to withdraw.
Consequently, this Court issued a second Rule to Show Cause to Kent’s
attorney on February 27, 2017. The order directed the Superior Court
Prothonotary to amend the docket to reflect Kent was represented by counsel,
and forward to counsel all of Kent’s pro se filings. Further, the order directed
counsel to (1) file an amended notice of appeal, since Kent’s pro se notice
listed the incorrect docket number; and, (2) show cause why the appeal filed
on October 21, 2016, should not be quashed as untimely. Both counsel and
Kent filed amended notices of appeal reflecting the correct docket number.
Moreover, on March 10, 2017, counsel responded to the Court’s show cause
order by stating the following: (1) after trial, he advised Kent that he did not
believe there was any “substantive basis upon which he could [have] file[d]
an appeal[;]” (2) thereafter, Kent “took into her possession her legal file[;]”
(3) after receipt of the show cause order, counsel met with Kent on March 7,
2017; and (4) Kent “advised [c]ounsel that she did not timely file an appeal
prior to October 16, 2016 because she suffers from chronic acute asthma[.]”
Response to Show Cause Order, 3/8/2017, at 2. Counsel attached to his
response a purported letter from Kent’s doctor, dated February 4, 2014, which
states Kent has been diagnosed with asthma. See id. at Exhibit. Thereafter,
on June 30, 2017, the trial court entered an order directing Kent to file a
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concise statement of errors complained of on appeal within 21 days, pursuant
to Pa.R.A.P. 1925(b). Kent filed an untimely concise statement on August 2,
2017.6
Preliminarily, we note the Commonwealth contends this appeal should
be quashed as untimely filed. See Commonwealth’s Brief at 9-10. We agree.
It is axiomatic that an appeal from a summary conviction following a
trial de novo must be filed within 30 days following the imposition of sentence.
See Pa.R.Crim.P. 720; Pa.R.A.P. 903(a). Here, Kent was immediately
sentenced following the trial de novo on September 16, 2016. Therefore, she
had until October 16, 2016, to file a timely notice of appeal. Her appeal, filed
on October 21, 2016, was manifestly untimely.
“Absent extraordinary circumstances, this Court has no jurisdiction to
entertain an untimely appeal.” Commonwealth v. Burks, 102 A.3d 497,
500 (Pa. Super. 2014). This Court has explained that such extraordinary
circumstances may include “a court holiday or closing or a breakdown in the
operations of a court, which might excuse [an] untimely filing.” Id. (footnote
omitted). See Commonwealth v. Patterson, 940 A.2d 493, 499 (Pa. Super.
2007) (declining to quash untimely appeal when trial court failed to advise
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6 The trial court requests we dismiss this appeal based upon Kent’s untimely
concise statement. See Trial Court Opinion, 8/4/2017, at 8-10. While we
agree an appellant’s failure to file a court-ordered concise statement in a
timely manner waives all issues for appeal in a civil case, Rule 1925(c)
mandates that, in a criminal, we must remand for the filing of a nunc pro tunc
statement if we are “convinced that counsel has been per se ineffective.” See
Pa.R.A.P. 1925(c)(4). Because we find this appeal was untimely filed, we need
not remand the case pursuant to Subsection 1925(c)(4).
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appellant that, due to his late filing of post-sentence motion, he had to file an
appeal within 30 days of sentencing), appeal denied, 960 A.2d 838 (Pa. 2008);
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (declining
to quash untimely appeal when clerk of courts did not enter an order reflecting
post-sentence motion was denied by operation of law); Commonwealth v.
Coolbaugh, 770 A.2d 788, 790-791 (Pa. Super. 2001) (declining to quash
untimely appeal, filed within 30 days of order denying post-sentence motion
following revocation of probation, when trial court misstated the appeal
period; in revocation cases, filing of post-sentence motion does not extend
appeal period).
We find no such circumstances were present in this case. Here, after
finding imposing sentence on the summary citations, the trial court instructed
Kent regarding her post-sentence rights as follows:
You have 10 days to file post disposition motions and 30 days to
file an appeal to the Superior Court. You have the right to be
represented by counsel. The public defender’s office is available.
The Bucks County Bar Association has a panel of attorneys who
will take criminal cases at a reduced rate. You have the right to
proceed without counsel. That’s all.
N.T., 9/16/2016, at 87. As noted supra, the court incorrectly stated Kent
could file post-dispositional motions following her summary trial de novo. See
Pa.R.Crim.P. 720(D). Nevertheless, the court correctly informed Kent she
had 30 days to file an appeal to this Court. Id. This was a correct statement
of the applicable appeal period. This case does not present a situation in which
Kent attempted to extend her appeal period by filing a post-disposition
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motion, based on the court’s instruction. Rather, Kent simply filed an untimely
appeal. Indeed, the only explanation counsel provided for the untimely filing
is Kent’s claim that she suffers from chronic asthma, supported by a letter
from her doctor dated two years before the appeal period herein.
Accordingly, because our review reveals no extraordinary circumstance
or breakdown in the court’s operation that caused Kent to file an untimely
appeal, we are constrained to quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/18
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